Michigan State University College of Law INDIGENOUS LAW & POLICY CENTER OCCASIONAL PAPER SERIES ICWA and the Commerce Clause Author Matthew L.M. Fletcher Indigenous Law & Policy Center Working Paper 2007-06 March 23, 2007 1ICWA and the Commerce Clause Matthew L.M. Fletcher Abstract Congress enacted the Indian Child Welfare Act, it said, in accordance with its authority under the Indian Commerce Clause and because it has assumed responsibility over Indian affairs. But under the line of cases developed by the Rehnquist Court, the Court takes a very dim view of Congressional authority under the Commerce Clause, while resurrecting the Tenth Amendment from its stasis as a “truism.” At least one Justice asserts that there is nothing in the Constitution that authorizes Congress to assume authority over Indian affairs to the exclusion of the Executive branch or the states. This paper argues that, despite the Court’s recent Commerce Clause jurisprudence, Congress had sufficient authority to enact the Indian Child Welfare Act. The intent of the paper is to present the strongest case for the constitutionality of the Indian Child Welfare Act as a matter of the original understanding of the Indian Commerce Clause. 2ICWA and the Commerce Clause Matthew L.M. Fletcher Introduction Despite the fact that the Indian Child Welfare Act1 (ICWA or Act) is a monumental piece of legislation – it affects every Indian child born in the United States and it serves as one of the most stinging rebukes of states’ rights by Congress in the 20th Century – the Supreme Court has heard only one case involving the Act. That case, Mississippi Band of Choctaw Indians v. Holyfield,2 did not address any challenges to the constitutionality of the Act. But the in years since Holyfield, a few state courts and a few commentators have expressed doubts as to the constitutionality of the Act under the Indian Commerce Clause and the Tenth Amendment.3 This Chapter will address only one of several potential constitutional challenges to the Act – those relating to the Indian Commerce Clause and the Tenth Amendment. The questions of equal protection and substantive due process have been addressed elsewhere in the scholarship,4 but no one has addressed in detail the question of the commerce clause and states’ rights. For our purposes, we interpret Article I, Section 8, Clause 3, which reads, “Congress shall have Power … To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”5 From this language derives the Indian Commerce Clause. This Chapter will attempt to determine whether Congress had 3authority to enact the Indian Child Welfare Act. This inquiry is limited, however, to determining whether the Indian Commerce Clause alone authorizes Congress to enact ICWA. Since Congress offered additional (albeit vague) sources of authority,6 the analysis conducted and the conclusion reached in this Chapter is not the entire story. Nevertheless, even an originalist reading of the Indian Commerce Clause must compel the interpretation that Congress had authority under the Indian Commerce Clause to enact ICWA. An Originalist Perspective of “Commerce” with Indian Tribes Perhaps the predominant mode of constitutional interpretation is “originalism.”7 Originalists hold that the only legitimate interpretation of ambiguity in the Constitution is through discerning the original meaning of the Constitution as the Framers and/or Ratifiers of the time period around the Constitutional Convention of 1787 and the ultimate ratification of the Constitution in 1789.8 Originalism is the product of conservative scholars and judges intent on wiping away the work of the Warren Court and its notion of a “living constitution.”9 Originalists tend to be textualists, as well, meaning that they would follow the plain meaning of the provisions of the Constitution first and above all other possible interpretations. Originalism can be for everybody, which could be its most serious fault. One of the major problems with originalism is the almost impossible task of discerning the original meaning or intent of the Constitution, opening the door to a plethora of competing interpretations.10 Consider the question of the Second Amendment, about which federal courts have marshaled significant and persuasive historical evidence that 4supports two separate and competing interpretations of the right to bear arms.11 Not all federal and state court judges label themselves as “originalists,” but an increasing minority of judges (and two or more Supreme Court Justices) attempt to follow its tenets. As a matter of clarity and an attempt to appeal to conservative judges and scholars, this Chapter will attempt to provide an originalist perspective of the Indian Commerce Clause, as well as the Tenth Amendment’s relation to Indian affairs. Like major schools of thought, there are at least two schools of thought on originalism. The first school elevates “original meaning” or “original understanding” to the most critical and legitimate form of meaning.12 The original meaning of the terms and phrases of the Constitution includes the understanding of the average reader of the Constitution around the time of the ratification or shortly thereafter. Of course, the average reader did not tend to write down their interpretation of the Constitution, so the proponents of the original meaning look to secondary sources of the original meaning, such as the interpretation of the Constitution given by the First Congress or the early statements of the Framers. Of particular note is the Federalist Papers authored by James Madison, Alexander Hamilton, and John Jay for the purpose of convincing the voters of New York to ratify the Constitution.13 Often, the proponents of the original meaning look to the dictionaries of the day to discern the public meaning of Constitutional provisions.14 The second major school of originalist elevates “original intent” to the forefront. The original intent of the Framers includes the purposes to which the Constitution was intended to serve.15 The evidence used to discern the original intent of the Constitution includes the statements and notes of the Framers during the Constitutional Convention and the debates surrounding each state’s decision on whether the ratify the Constitution. 5The Federalist Papers also serve as a primary source of authority for